CIC won’t give J&K info on its hydel projects

Both water and information controlled by governments and their agencies are public goods. They must be readily accessible to the people on demand. Nobody should be allowed to claim proprietorial rights over either of them. Yet the CIC brushed aside all these arguments and ruled in favour of continued secrecy.

<p align="JUSTIFY">Venkatesh Nayak is with the Commonwealth Human Rights Initiative, New Delhi. Its Twitter handle is @CHRI_INT</p>

To meet its ever-growing demand, J&K buys 20% of power produced by NHPC in the state at market rates, spending about Rs 40 billion.

We will extract electricity from the rivers of Jammu and Kashmir (J&K) to power your homes, offices and streets but we will not throw any light on handing back those hydel projects to the State seems to be the stance of NHPC Ltd, India’s largest public sector hydroelectric power producer.

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Less than a week before the October anniversary of the Right to Information Act (RTI Act), the Central Information Commission (CIC) legitimised this stubborn opacity through a quizzical order. Despite being told that the return of the hydel projects was a widely debated issue in Jammu & Kashmir, the CIC ruled that that it would not disclose details of the negotiations. The CIC treated the NHPC as a “third party” in its own case to deny access to information.

In July 2000 the J&K government signed an MoU with the Central government transferring seven hydro power projects to NHPC for funding, execution and operation. The MoU covered Kishanganga, Uri-II, Bursar, Sewa-II, Pakal Dul, Nimmo Bazgo and Chutak projects for a period of ten years. Currently, NHPC generates close to 30% of its national total annual output (2,009 MW of 6,717 MW) from the hydel projects located at Salal, Uri, Dulhasti, Sewa, Nimmo Bazgo and Chutak in J&K, earning it about Rs 200 billion annually. A couple more are under construction and a handful are said to be at an exploratory stage.

Under the terms of the MoU, 12% of the electricity generated is supplied free of cost to J&K. To meet its ever-growing demand, J&K buys 20% of power produced by NHPC in the state at market rates, spending about Rs 40 billion.

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Yet, many remote villages in J&K try to keep the freezing cold, out, with polluting diesel generators. Power outages when school-going children study for their exams are an annoyingly common phenomenon in an otherwise power-surplus state.

In 2006, the Rangarajan Committee recommended the transfer of two hydel projects back to J&K. Six years later, the three Interlocutors appointed by the UPA government to find a political solution to the ongoing J&K problem recommended the return of all Central sector power projects to J&K as a confidence-building measure.

Senior ministers have repeatedly declared that the BJP government, which is in coalition with the Mehbooba Mufti government, routinely rejects these recommendations. The NHPC has argued that the issue has not been resolved yet and publicising details of negotiations would lead to speculation and confusion among its investors, thereby affecting its commercial interests.

The CIC has bought the NHPC’s argument hook, line and sinker, despite this author showing that private Indian and foreign investors own barely 10% of NHPC’s shares. The Central government and public sector banks and insurance companies own the remaining 90%. The quantum of shares publicly traded is much smaller than what is normally required to negatively affect share value.

Even stranger was the CIC’s interpretation of Section 8(1)(d) of the RTI Act that NHPC invoked to prevent disclosure. A plain reading of this provision shows that the protection for commercially confidential information is available only to “third parties”, not to a public authority that holds the requested information. So while deciding the appeal against the NHPC, the CIC treated it as a “third party” as well, citing an eight-year old full bench decision of the Commission in a tax-related matter.

Throwing propriety to the wind, the CIC ignored two cases this author cited in his appeal, in which the Delhi High Court had clearly ruled that a public authority cannot become both “second party” and the “third party” in relation to one RTI application. In both cases a similar misinterpretation of Section 8(1)(d) given by the CIC was under challenge.

India ratified the International Covenant on Economic, Social and Cultural Rights in 1979, which recognises every human being’s right to water. In 2002, the Covenant’s monitoring body declared that the right to water includes people’s right to access information about water. Both water and information controlled by governments and their agencies are public goods. They must be readily accessible to the people on demand. Nobody should be allowed to claim proprietorial rights over either of them. Yet the CIC brushed aside all these arguments and ruled in favour of continued secrecy.

The ball now bounces into the State government’s court. The BJP-PDP’s Agenda for Alliance requires them to work out the modalities for return of hydel projects with the Central government. Publicising details of their negotiations is the first step towards returning to the people of Jammu & Kashmir control over their natural resources.